New political arrangement: Department of Telecommunications and Postal Services + Department of Communications

[12 August 2016] One of the annexures in the court papers filed by the Minister of Telecommunications and Postal Services against ICASA as regards the Invitation to Apply published by the latter, is the Memorandum of Understanding entered into between the Minister of Communications and the Minister of Telecommunications and Postal Services setting out the basis for cooperation between them.

[21 February 2015] At last an answer has been offered to the question of why the President determined to split the old Department of Communications into a new Department of Telecommunications and Postal Services (DTPS) and a new Department of Communications (DoC). Deputy-Minister Stella Ndabeni-Abrahams offered the following when presenting a progress report on the establishment of the DoC to the Portfolio Committee on Communications on 17 February 2015 (as reported by the Parliamentary Monitoring Group):

Ms Ndabeni Abrahams said DoC and DTPS were split because during elections citizens complained that government was not talking to us. After getting majority vote, the ANC had to respond to the needs of the citizens. During elections political parties were running like headless chickens trying to explain what the government has done. Some of the contributing factors to unemployment was that South African citizens do not know for example citizens were delayed at Home Affairs instead of telling the bureaucrats that you have to be productive as you were appointed by government.

It needs to influence South Africans to be proud South Africans and it has to improve the target from 66% to 75% of South Africans reflecting pride to be South Africans.

The DoC also presented on its progress in establishing the new Department of Communications, noting that it had made significant progress and expected the DoC to be ready to function in the new financial year commencing 1 April 2015. A determination on the transfer of functions, staff and resources from the DTPS to the DoC was issued by the Minister of Public Service and Administration on 4 February 2015.

It is noteworthy that – aside from stating that ICASA reports to the DoC – the presentations make no reference to the communications regulator and it is difficult to see what role it would play in the National Communications Strategy 2014-2019 as presented.

In short: the new DoC appears to have a mandate which is centred on content while ICASA has extremely limited jurisdiction in respect of content (mostly relating to broadcasting content quotas) but rather has a mandate to regulate the movement of content. This distinction is critical.

While arguments regarding the independence of ICASA are often overstated, making it report to a Government department with the express mandate of facilitating communications between Government and South Africans seems to conflict in a fundamental way with any meaningful conception of independence.

There are currently six vacancies on ICASA’s Council with the terms of another two councillors due to end in the next year. There will therefore be an opportunity to significantly reshape this body.

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[8 December 2014] What tangled webs we weave…

A new proclamation issued on the 2nd December 2014 indicates the Byzantine arrangements that are going to be required to accommodate the split of the old Department of Communications.

A good example of this is the fact that the performance management system for ICASA councillors – which has to date not been implemented despite being on the books for 8 years – will now be a function of targets set by two different Ministers….

Set out below is the proclamation with the relevant sections inserted for clarity:

ICASA Act

Cabinet member to whom responsible function is transferred and extent of transfer

s4(3)(a)

Functions of Authority and chairperson

(1) The Authority –

(a) must exercise the powers and perform the duties conferred and imposed upon it by this Act, the underlying statutes and any other applicable law;

(b) ……….

(c) subject to section 231 of the Constitution, must act in a manner that is consistent with the obligations of the Republic under any applicable international agreement.

(2) The Authority is subject to the Public Finance Management Act, 1999 (Act No. 1 of 1999).

(3) Without derogating from the generality of subsections (1) and (2), the Authority-

(a) may make recommendations to the Minister on policy matters and amendments to this Act and the underlying statutes which accord with the objects of this Act and the underlying statutes to promote development in the broadcasting, electronic transactions, postal and electronic communications sectors;

The Minister of Communications in so far as ICASA may make recommendations to that Minister on policy matters and amendments to the ICASA Act and the Broadcasting Act, 1999, which accord with the objects of these Acts to promote development in the broadcasting sector.

The Minister of Telecommunications and Postal Services, in so far as ICASA may make recommendations to that Minister on policy matters and amendments to the ECA and the Postal Services Act, 1998, which accord with the objects of these Acts to promote development in the electronic transactions, postal and electronic communications sectors.

s4(3)(o)

…(o) may make recommendations to the Minister on matters dealt with or to be dealt with in the Electronic Transactions Act;

Minister of Telecommunications and Postal Services

s4(3A)(e)*

(3A) The Authority, in exercising its powers and performing its duties-(a) must consider policy made, and policy directions issued, by the Minister in terms of this Act, the underlying statutes and any other applicable law; and

The Minister of Communications in so far as policy made, and policy directions issued, by that Minister in terms of the Broadcasting Act, 1999, the ICASA Act and any other applicable law.

The Minister of Telecommunications and Postal Services in so far as policy made, and policy directions issued, by that Minister in terms of the Postal Services Act, 1998, the ECA, and any other applicable law.

ss6A(2)(a) & (b)

6A. Performance management system (1) The Minister must, in consultation with the National Assembly, establish a performance management system to monitor and evaluate the performance of the chairperson, councillors and the Council, individually and collectively.(2) The performance management system must –

(a) set appropriate key performance indicators as a yardstick for measuring performance, including, amongst others, the matters and the time periods set out in sections 4(3A), 4B(2)(a), (7), (8) and (9), 4C(6), 7(7), 11A(3) and (4), 11B, 12(2) and 16(1) and (2);

(b) set measurable performance targets;

The Minister of Communications in so far as appropriate key performance indicators and measurable performance targets contemplated in the section referred to in Column 1 relate to the laws administered by that Minister.

The Minister of Telecommunications and Postal Services in so far as appropriate key performance indicators and measurable performance targets contemplated in the section referred to in Column 1 relate to the laws administered by that Minister.

s15(1A)

15A. Annual planThe chief executive officer must, at least three months before the end of each financial year, prepare and submit to the Council for approval an annual plan which describes the proposed activities of the Authority with indicative timeframes for the coming year.

The Minister of Communications in so far as the administration of and powers and functions entrusted by the section referred to in Column 1 relate to the laws administered by that Minister.

The Minister of Telecommunications and Postal Services in so far as the administration of and powers and functions entrusted by the section referred to in Column 1 relate to the laws administered by that Minister.

ss16(1) and (2)

Annual report

(1) The Council must –

(a) in addition to the requirements in terms of paragraph (b), supply the Minister with such information and particulars as he or she may in writing require in connection with the activities of the Authority; and

(b) as soon as may be reasonably practicable after the end of each financial year but in any event within three months of the end of the financial year, supply the Minister with a copy of –

(i) the annual report of the Authority which must reflect in reasonable detail deliverables and those matters that were not dealt with in terms of the annual plan referred to in section 15A;

(ii) the financial statements of the Authority referred to in section 40 (1) (e) of the Public Finance Management Act, 1999 (Act No. 1 of 1999); and

(iii) the Auditor-General’s report on those statements

(2) For purposes of this section, the annual report referred to in subsection (1) (b) (i) must include, amongst others –

The Minister of Communications and the Minister of Telecommunications and Postal Services: The administration of and powers and functions entrusted by the section referred to in Column 1.

* presumably a typo as this subsection does not exist

ECA

Cabinet member to whom responsible function is transferred and extent of transfer

s3

Ministerial Policies and Policy directions

The Minister of Communications in so far as policies contemplated in the section referred to in Column 1 relate to the Broadcasting Act, 1999 and the ICASA Act.

The Minister of Telecommunications and Postal Services in so far as policies contemplated in the section referred to in Column 1 relate to the ECA.

s4(5)

Regulations by Authority

(5) The Authority must, not less than 30 days prior to making regulations, inform the Minister in writing of its intention and provide the Minister with a copy of the proposed regulations.

The Minister of Communications in so far as regulations proposed in terms of the section referred to Column 1 relate to the Broadcasting Act, 1999 and the ICASA Act.

The Minister of Telecommunications and Postal Services in so far as regulations proposed in terms of the section referred to Column 1 relate to the ECA.

s5(6)

Licensing

(6) The Authority may only accept and consider applications for individual electronic communications network services licences in terms of a policy direction issued by the Minister in terms of section 3.

The Minister of Communications in so far as a policy direction contemplated in the section referred to Column 1 relates to the Broadcasting Act, 1999 and the ICASA Act.

The Minister of Telecommunications and Postal Services in so far as a policy direction contemplated in the section referred to Column 1 relates to the ECA.

Chapter 9

Chapter 9 – Broadcasting

The Minister of Communications: The administration of the Chapter referred to in Column 1.

s79B

79B. Provision of information(1) Subject to the Promotion of Access to Information Act, 2000 (Act No. 2 of 2000), the Minister may, in writing, require the Authority or the Agency, or any other person to provide, within a reasonable time or on a regular basis, any data, information or documents to the Minister that are required for the purposes of the performance of the functions of the Minister.(2) A notice under subsection (1) may also indicate the manner in which the information must be furnished and, if required, how the information must be verified.

(3) When information is requested by the Minister the relevant person may request the Minister to treat specific information as confidential, and for that purpose section 4D of the ICASA Act applies with the changes required by the context

The Minister of Communications in so far as the administration of and powers and functions entrusted by the section referred to in Column 1 relates to the functions of the Minister.

The Minister of Telecommunications and Postal Services in so far as the administration of and powers and functions entrusted by the section referred to in Column 1 relates to the functions of the Minister.

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[16 November 2014] The National Micro Organisation of State Project (NMOS) presented a Status Report to the Portfolio Committee on the Establishment of the Department of Communications on 11 November 2014, providing further insight into the difficulties being experienced in implementing the splitting of the communications portfolio.

It appears from the presentation that the Ministers of Telecommunications and Postal Services and Communications respectively have met twice under the guidance of the Presidency in order to try and agree on the transfer of legislative functions between them. This has not to date been successful – apparently because Telecommunications and Postal Services does not wish to hand over control of certain sections of the Electronic Communications Act – and the Presidency will be required to intervene, probably through a new proclamation which will once again try to set out who is responsible for what. How this will be done given that there are broadcasting policy responsibilities in the ECA and telecommunications policy responsibilities under the ICASA Act is not clear.

It is also clear that Treasury has not set aside any funds for the establishment of the new Department of Communications and that is currently desperately trying to reallocate budget so that vehicles and other assets can be acquired.

[10 November 2014] Progress. Of a sort. After almost six months we have managed to secure the separate online identities of the Department of Telecommunications and Postal Services (now www.dtps.gov.za) and the Department of Communications (now www.doc.gov.za).

The doc.gov.za domain was officially handed over to the “new” Department of Communications on 7 November 2014.

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[23 August 2014] It appears from a meeting of the portfolio committee for communications that a National Micro Organisation of State Project (NMOS) 2014 has been established to provide support and assistance to the new departments created after the 2014 general election.

In a presentation by the Department of Public Service and Administration (DPSA) it was confirmed that the Department of Communications would deal with functions related to the Government Communication and Information System (GCIS) and it oversee the following entities:
– Independent Communications Authority of South Africa (ICASA)
– South Africa Broadcasting Corporation (SABC)
– Brand SA
– Media Development and Diversity Agency (MDDA)
– Film and Publication Board (FPB)

The newly created Department of Telecommunications and Postal Services would deal with functions related to telecommunications, and would include the following entities:
– Broadband Infrastructure Company (Pty) Ltd
– South Africa Post Office Ltd
– Telkom SA Ltd
– National Electronic Media Institute of South Africa (NEMISA)
– State Information and Technology Agency (SITA)
– Universal Service and Access Agency of South Africa (USAASA)
– Universal Service and Access Fund (USAF)
– Sentech Limited

The DPSA also referred to a 30-page document, which was currently with the State Law Advisor, identifying areas of potential overlaps and the NMOS was doing its best to solve the matter. To give but one example, he said that there was a Memorandum of Understanding that would be signed by ICASA and the new departments that would clarify their areas of operation.

Interestingly the presentation

confirms that the board of Broadband Infraco have accepted in principle the transfer of that entity to the Department of Telecommunications and Postal Servoces

notes that the State Law Advisor has raised a query about the position of ICASA

It was abundantly clear from the meeting that even the ANC members of the portfolio committee did not know why the President had decided to effect the realignment.

Of further interest to ICASA-watchers will be the view expressed by the Chairperson of the Portfolio Committee that ICASA should not be a Chapter 9 Institution and that the Committee should receive further guidance on this matter.

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[18 July 2014] Another proclamation signed on 15 July 2014 brings further clarity while deepening confusion.

Administration of the Electronic Communications Act will fall under the Department of Telecommunications and Postal Services (DTPS) but administration of the ICASA Act will fall under the Department of Communications (DoC)

Administration of the Film and Publications Act (and therefore the Film and Publications Board (FPB)) has been transferred from the Department of Home Affairs to the DoC

Administration of the State Information Technology Agency Act (and therefore the State Information Technology Agency (SITA)) has been transferred from the Department of Public Service and Administration to the Department of Telecommunications and Postal Services

The most important of the changes is set out in the table below (for a full list consult the link above):

Legislation

Previous Cabinet Member

New Cabinet Member

Electronic Communications Act 36 of 2005

Minister of Communications

Minister of Telecommunications and Postal Services

ICASA Act 13 of 2000

Minister of Communications

Minister of Communications

Electronic Communications and Transactions Act 25 of 2002

Minister of Communications

Minister of Telecommunications and Postal Services

Film and Publications Act 65 of 1996

Minister of Home Affairs

Minister of Communications

Broadcasting Act 4 of 1999

Minister of Communications

Minister of Communications

Sentech Act 63 of 1996

Minister of Communications

Minister of Telecommunications and Postal Services

Postal Services Act 124 of 1998

Minister of Communications

Minister of Telecommunications and Postal Services

Media Development and Diversity Agency Act 24 of 2002

Minister in the Presidency responsible for Performance Monitoring and Evaluation

Minister of Communications

State Information Technology Agency Act 88 of 1998

Minister for the Public Service and Administration

Minister of Telecommunications and Postal Services

The proclamation further confirms that all the powers and functions of the executive authority of the Government Communication and Information System (GCIS) under the Public Service Act of 1994 have been transferred from the Minister in the Presidency responsible for Performance Monitoring and Evaluation to the Minister of Communications

[8 July 2014]It is being reported that the President signed a proclamation on 3 July 2014 which in essence states that the new Department of Communications is a rebranded Government Communications and Information Service (GCIS) whilst making provision for the creation of the Department of Telecommunications and Postal Services.

[4 July 2014] In a presentation on its strategic and annual plans to a joint meeting of the Portfolio Committees for the Department of Communications (DoC) and the Department of Telecommunications and Postal Services (DoTPS) held on 1 July 2014, the DoC noted the following under the heading “Reconfiguration of the Department”:

It must be acknowledged that the Department is in a process of transformation following the President’s announcement of the establishment of the Department of Telecommunications and Postal Services (DTPS).

Engagement in this regard, which are being led by the Presidency, are currently underway towards the signing of the Presidential Proclamation. Following the signing of the Proclamation, the DTPS will amend the Strategic Plan and APP accordingly to reflect such changes which would also deal with emerging priorities including e-Government.

The revised Strategic Plan and APP will then be tabled in Parliament and shared with the Portfolio Committee.

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[27 June 2014] A statement from the Presidency issued on 24 June 2014 singularly fails to dispel the confusion:

On the 25th of May 2014, President Jacob Zuma announced a new National Executive, which included a reconfiguration of certain government departments.

The affected departments have been directed to study the legal and administrative implications of the policy announcements made by the President, as per procedure.

The process will culminate in a proclamation that will, amongst others, establish the new departments, transfer the administration of certain legislation from one Minister to another or transfer certain functions, agencies or institutions from one Department to another.

Once this process is concluded, the President will make the final pronouncement on the new government system.

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[17 June 2014] Techcentral reports that sanity has prevailed – a rare occurrence – and that ICASA will now report into the new Department of Telecommunications and Postal Services.

“Government has backtracked on plans to have communications regulator Icasa report to the newly created department of communications, which also houses the SABC, Brand South Africa and other entities, a highly placed source with knowledge of the development has told TechCentral.

Instead, Icasa will report to the department of telecommunications and postal services, for which former state security minister Siyabonga Cwele is the minister. It’s a move that’s likely to be widely welcomed in the telecoms industry. Analysts had expressed concern that Icasa, one of whose principal tasks is regulating the telecoms sector, had been shifted to another department.

Cwele’s spokesman, Siya Qoza, tells TechCentral: “The government is working on finalising the proclamation that will clarify the roles of all the entities that are affected by the reconfiguration of departments. We’ll communicate additional details at an appropriate moment.”

President Jacob Zuma announced the formation of a new Ministry of Telecommunications and Postal Services as well as a new Minister of Communications in his statement regarding new Cabinet appointments on 25 May 2014. There is – mildly speaking – confusion regarding how this will work.

“We have established a Ministry of Telecommunications and Postal Services.

Our country has a fast growing telecommunications sector which in 2012 was estimated at being worth R180 billion. We also see a great developmental value in the Post Office given its role of delivering financial services to remote areas of our country.

This new department will ensure that the country derives more value out of the booming information communications and technology industry and the postal services sector.

…

We have established a new Communications Ministry, which will be responsible for overarching communication policy and strategy, information dissemination and publicity as well as the branding of the country abroad.

Improved communication and marketing will promote an informed citizenry and also assist the country to promote investments, economic growth and job creation.

This Ministry will be formed out of the following components;

• The Independent Communications Authority of South Africa

• The SA Broadcasting Corporation

• Government Communications and Information System (GCIS)

• Brand SA and

• The Media Development and Diversity Agency

The overriding view from analysts appears to be that the majority of the functions undertaken by the previous DoC will now fall to the Department of Telecommunications and Postal Services. This is borne out by the maiden speech of the new Minister of Telecommunications and Postal Services, which proceeds on the basis that that it will taking over the programmes of the previous DoC:

“For South Africa to maximise the benefits of broadband we need to develop the skills that will drive the roll-out of infrastructure and the development of relevant content for social, business and government use. To make sure that no-one is left out of this information society we need to eradicate illiteracy and make sure that broadband forms an integral part of service delivery by government. The department has been working with industry on a capacity development programme in schools and communities at large and we encourage further support from industry in this regard.”

“The Department launched the World Telecommunication and Information Society Day celebrations on 16 May, through a media briefing session. Our intention was to ensure that we do not only celebrate on a single day but we create public awareness around broadband.”

“As we proceed to implement SA Connect, the continued participation of industry is essential. Ongoing investment by the private sector in broadband infrastructure and continual modernisation and enhancement of efficiencies are required. In order to reduce cost and optimise resources, we wish to encourage infrastructure sharing amongst operators. The attainment of vision 2030 can only occur if we all work together.

I also wish to express my interest in engaging industry in a formal manner on a regular basis and I have instructed my department to facilitate this process.”

The major concern with this is that ICASA falls under the new DoC and it is by no means clear how this will work. It is also not clear that this arrangement can be implemented without some substantial amendments to the Electronic Communications Act and the ICASA Act.

It may be that this is an attempt to lay the groundwork to separate out “broadcasting” from “telecommunications services” and “postal services”, i.e. to separate out that part of ICASA’s jurisdiction which indisputably falls under Chapter 9 of the Constitution and therefore enjoys Constitutional protection.

“South Africa now will not make its commitment to meet the mid-2015 deadline to switch off analogue television. It will not allocate the spectrum needed to improve our poor broadband penetration. And a long overdue overhaul of legislation governing the sector will almost certainly be significantly delayed.

“The splitting of the former communications ministry in two has caused almost as much confusion as there is horror over the disposal of its minister, Yunus Carrim, who is said to have done more for the sector in his nine months at the helm than has been achieved by any other minister in the past decade.

Stepping in to preside over the newly formed ministry of telecommunications and postal services is Siyabonga Cwele who, thanks to splashy headlines, is perhaps better known for his drug-trafficking former wife, Sheryl Cwele, than his role as state security minister and former minister of intelligence. He is known as one of the men behind the contentious Protection of State Information Bill, aka the secrecy Bill.

A major cause for concern is that the new telecommunications and postal services ministry will not include the Independent Communications Authority, which plays a key role in the telecommunications sector.

Instead, the regulator will be housed in the new communications ministry, which appears to have been set up to deal largely with government public relations and information. The split has also left stakeholders unsure of where ministry bodies set up under Carrim (such as the Broadband Advisory Council and the Cyber Security Advisory Council) will report to.

Cwele hasn’t dazzled onlookers with his performance in former roles and the telecommunications industry requires strong leadership at this crucial point in time.

Critical issues that will require his attention include finalising LTE (or 4G) and spectrum allocation policy, as well as progressing digital migration by settling a long-running argument about whether television set top boxes should be access controlled. The sector may face further delays as the new minister, with no expertise in the industry, gets to grips with the issues.”

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